KIM v. RUSSIA JUDGMENT
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2. Compliance with Article 5 § 1 of the Convention
46. The Government acknowledged a violation of Article 5 § 1 (f) in
respect of the time period after 5 February 2013, the date on which the letter
from the Embassy of Uzbekistan made it clear that the applicant’s expulsion
to Uzbekistan was impossible. As regards the preceding period, the
Government submitted that the lengthy detention was accounted for by an
“objective reason”, notably the absence of information from the Embassy of
Uzbekistan. The domestic authorities had shown “special diligence” in the
conduct of the expulsion proceedings.
47. The applicant submitted that the Russian authorities had not
conducted the expulsion proceedings with due diligence. This lack of due
diligence on their part was exemplified in several ways. Firstly, no effort
had been made to contact the Uzbek authorities in the first four months and
eleven days of his detention. Secondly, the Russian authorities had sent no
fewer than four letters to the Embassy of Uzbekistan in Moscow, but a first
reply was received more than one year and two months after the despatch of
the first letter. Thirdly, there had been no justification for the applicant’s
detention after 5 February 2013, when the Russian authorities had become
aware that he was not an Uzbek national. Finally, the applicant pointed out
that he had been kept in detention pending expulsion: thus, there had been
no complex extradition proceedings and the only issue to be determined had
been whether at least one State was willing and able to receive him.
48. The applicant was held in custody with a view to his expulsion from
Russia, which is a form of “deportation” in terms of Article 5 § 1 (f) of the
Convention (see Azimov, cited above, § 160). Accordingly, the deprivation
of the applicant’s liberty fell within the ambit of Article 5 § 1 (f).
49. Article 5 § 1 (f) does not demand that detention be reasonably
considered necessary, for example to prevent an individual from committing
an offence or fleeing. Any deprivation of liberty under the second limb of
Article 5 § 1 (f) will be justified, however, only for as long as deportation or
extradition proceedings are in progress. If such proceedings are not
prosecuted with due diligence, the detention will cease to be permissible
under Article 5 § 1 (f) (see Chahal v. the United Kingdom, 15 November
1996, § 113, Reports of Judgments and Decisions 1996-V). To avoid being
branded as arbitrary, detention under Article 5 § 1 (f) must be carried out in
good faith; it must be closely connected to the ground of detention relied on
by the Government; the place and conditions of detention should be
appropriate; and the length of the detention should not exceed that
reasonably required for the purpose pursued (see A. and Others
v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009).
50. The Court notes that the applicant remained in detention pending the
enforcement of the order for his expulsion for a total period of two years
and ten days. It appears that the only steps taken by the Russian authorities
during that time were to write to the Embassy of Uzbekistan in Moscow five